Mariani v. Selsky

47 A.D.3d 1146, 850 N.Y.S.2d 686

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After a can top and a container of black pepper were found in his cube, petitioner was charged in a misbehavior report with possession of a weapon and possession of contraband. Following a tier III disciplinary hearing he was found guilty of these charges. That determination was confirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report, together with petitioner’s admissions that the items in question were in his cube (see Matter of Amaker v Selsky, 42 AD3d 827, 827 [2007]; Matter of Barham v Goord, 42 AD3d 607, 608 [2007]). Petitioner’s assertion that he cannot be guilty of the weapon possession charge because he never intended to use the can top as a weapon is unavailing (see Matter of Victory v Coughlin, 143 AD2d 455, 457 [1988]). Petitioner’s remaining contentions, including his claims that he was improperly denied the right to present witness testimony and the Hearing Officer was not appropriately designated to conduct the hearing, are unpreserved for our review.

Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.